Friday, 23 October 2015

We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges
wherein the Court decreed, by the narrowest of margins, that every
state in the country must redefine marriage to include same-sex
relationships.

The Court’s majority opinion eschewed
reliance on the text, logic, structure, or original understanding of the
Constitution, as well as the Court’s own interpretative doctrines and
precedents, and supplied no compelling reasoning to show why it is
unjustified for the laws of the states to sustain marriage as it has
been understood for millennia as the union of husband and wife.

The opinion for the Court substituted for
traditional—and sound—methods of constitutional interpretation a new
and ill-defined jurisprudence of identity—one that abused the moral
concept of human dignity.

The four dissenting justices are right to reject the majority opinion in unsparing terms.

Justice Scalia refers to it as “a naked
judicial claim to legislative….power; a claim fundamentally at odds with
our system of government.”

Justice Thomas says the opinion “exalts
judges at the expense of the People from whom they derive their
authority” as it perverts the meaning of liberty into an entitlement to
government action.

Justice Alito calls attention to the
well-established doctrine that the “liberty” guaranteed by the due
process clause protects only those rights “that are deeply rooted in
this Nation’s history and tradition,” and that it is “beyond dispute
that the right to same-sex marriage is not among those rights.” He
further points to the opinion’s tendency to reduce the purpose of
marriage to “the happiness of persons who choose to marry.” He warns it
will be used to “vilify Americans who are unwilling to assent to the new
orthodoxy” and is yet another example of the “Court’s abuse of its
authority.”

Chief Justice Roberts says “the
Constitution leaves no doubt” that the majority’s “pretentious” opinion
is incorrect. It even attempts to “sully those on the other side of the
debate” in an “entirely gratuitous” manner.

If Obergefell is accepted as
binding law, the consequences will be grave. Of the results that can be
predicted with confidence, four stand out:

First, society will be harmed by being
denied the right to hold out as normative, and particularly desirable,
the only type of human relationship that every society must cultivate
for its perpetuation. This compelling interest is strengthened by the
fact that there is strong evidence to support what common sense
suggests, namely, that children fare best when raised by their married
mother and father who are both responsible for bringing them into the
world and who provide maternal and paternal influences and care.

Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugalunion—the
covenantal partnership of one man and one woman—will be vilified,
legally targeted, and denied constitutional rights in order to pressure
them to conform to the new orthodoxy.

Third, the new jurisprudence of dignity
is unlimited in principle and will encourage additional claims to
redefine marriage and other long-established institutions.

Fourth, the right of all Americans to
engage in democratic deliberation, and ultimately self-government, will
be decisively undermined.

Any decision that brings about such evils
would be questionable. One lacking anything remotely resembling a
warrant in the text, logic, structure, or original understanding of the
Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.

In 1788, James Madison wrote, “The
several departments being perfectly co-ordinate by the terms of their
common commission, neither of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers.”

In 1857, Abraham Lincoln said, “Judicial
decisions are of greater or less authority as precedents, according to
circumstances. That this should be so, accords both with common sense,
and the customary understanding of the legal profession.” If a decision
“had been made by the unanimous concurrence of the judges, and without
any apparent partisan bias, and in accordance with legal public
expectation, and with the steady practice of the departments throughout
our history, and had been in no part, based on assumed historical facts
which are not really true; or, if wanting in some of these, it had been
before the court more than once, and had there been affirmed and
re-affirmed through a course of years, it then might be, perhaps would
be, factious, nay, even revolutionary, to not acquiesce in it as a
precedent.” If, however, a decision is “wanting in all these claims to
the public confidence,” it is “not factious” to resist it.

Obergefell is wanting in all these
claims to the public confidence. It cannot therefore be taken to have
settled the law of the United States.

Therefore:

We stand with James Madison and Abraham
Lincoln in recognizing that the Constitution is not whatever a majority
of Supreme Court justices say it is.

We remind all officeholders in the United
States that they are pledged to uphold the Constitution of the United
States, not the will of five members of the Supreme Court.

We call on all federal and state officeholders:

To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.

To recognize the authority of states to
define marriage, and the right of federal and state officeholders to act
in accordance with those definitions.

To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.

To open forthwith a broad and honest
conversation on the means by which Americans may constitutionally resist
and overturn the judicial usurpations evident in Obergefell.

We emphasize that the course of action we
are here advocating is neither extreme nor disrespectful of the rule of
law. Lincoln regarded the claim of supremacy for the Supreme Court in
matters of constitutional interpretation as incompatible with the
republican principles of the Constitution. Our position is summed up in
Lincoln’s First Inaugural Address:

I do not forget the position assumed by
some that constitutional questions are to be decided by the Supreme
Court, nor do I deny that such decisions must be binding in any case
upon the parties to a suit as to the object of that suit, while they are
also entitled to very high respect and consideration in all parallel
cases by other departments of the government. And while it is obviously
possible that such decision may be erroneous in any given case, still
the evil effect following it, being limited to that particular case,
with the chance that it may be overruled and never become a precedent
for other cases, can better be borne than could the evils of a different
practice. At the same time, the candid citizen must confess that if the
policy of the government upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme Court, the
instant they are made in ordinary litigation between parties in
personal actions, the people will have ceased to be their own rulers,
having to that extent practically resigned their government into the
hands of that eminent tribunal.

The proper understanding and definition
of marriage is self-evidently a vital question affecting the whole
people. To treat as “settled” and “the law of the land” the decision of
five Supreme Court justices who, by their own admission, can find no
warrant for their ruling in the text, logic, structure, or original
understanding of the Constitution, would indeed be to resign our
government into the hands of that eminent tribunal. That is something
that no citizen or statesman who wishes to sustain the great experiment
in ordered liberty bequeathed to us by our Founding Fathers should be
willing to do.

Signatories

(Institutional affiliations are for identification purposes only)

Bradley C. S. Watson, Philip M. McKenna Chair in American and Western Political Thought and Professor of Politics, Saint Vincent College

John C. Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University

George W. Dent, Jr., Professor of Law, Case Western Reserve University School of Law